Article

The Journal of Criminal Law

2018, Vol. 82(2) 138–155
Human Trafficking, Victims’ ª The Author(s) 2018
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
Rights and Fair Trials DOI: 10.1177/0022018318761680
journals.sagepub.com/home/clj

Tony Ward
Northumbria University, UK

Shahrzad Fouladvand
University of Sussex, UK

Abstract
Cases of human trafficking are known to be difficult to prosecute. In this article we identify
several issues in the law of evidence that may contribute to these difficulties. We argue for the
victims’ rights as an important factor in evidential decisions, coupled with an insistence that
such rights cannot trump the defendant’s right to a fair trial. Restrictions on evidence of a
witness’s bad character or sexual history should not be interpreted in such a way as to prevent
the defence from introducing evidence, or asking questions, that are of substantial probative
value, even if they are potentially distressing to witnesses; but such evidence and questioning
should be limited to what is necessary for a fair trial. The protection of victims and witnesses
may also justify a relatively flexible approach to the admission of hearsay evidence, which avoids
prejudging the truth of a witness’s evidence in order to establish that s/he is in fear.

Keywords
Human trafficking, vulnerable witnesses, victims’ rights, character evidence, hearsay evidence

Introduction
Cases of human trafficking are frequently difficult to prosecute and raise a number of issues in the law of
evidence. Human trafficking, now defined by the Modern Slavery Act 2015, s. 2, involves arranging or
facilitating the travel (to, from or within any country) of another person with a view to their being
exploited; the exploitation may involve a sexual offence, servitude or forced labour, or otherwise
coercing or deceiving the person into providing some service or benefit.1 According to a recent report
by the National Audit Office (NAO), only 6 per cent of the offences under the Modern Slavery Act 2015
recorded in the year to the end of March 2017 resulted in a charge or summons. More than a quarter (27

1. Modern Slavery Act 2015 ss 2, 3.

Corresponding author:
Tony Ward, Northumbria University, Law School, City Campus East, Newcastle upon Tyne NE1 8ST, UK.
E-mail: tony.ward@northumbria.ac.uk
Ward and Fouladvand 139

per cent) were recorded by the CPS ‘as having evidential difficulties’. The CPS and the police are
reported to be investigating the reasons why cases are not meeting the evidential threshold for prosecu-
tion.2 Prosecutors interviewed by the NAO pointed to variable levels of investigation and case-building
by the police and to difficulties in identifying perpetrators, gathering sufficient evidence, and ‘victims
agreeing to act as witnesses and then being available for the trial’.3
It is unclear how far the law of evidence, as opposed to the practical difficulties of evidence
gathering, contributes to the difficulties of prosecuting human trafficking cases. In this article, we
identify several aspects of the law relating to character evidence, sexual history evidence, witness
anonymity and hearsay which appear to raise potential difficulties in trafficking cases, or which have
in fact done so in cases that have reached the Court of Appeal. Our starting point is a recognition of
victims’ rights as an important factor in evidential decisions, coupled with an insistence that victims’
rights cannot trump the defendant’s right to a fair trial. We refer to victims’ rights not because we
equate complainants with victims but because it is actual victims, those whose human rights (partic-
ularly to freedom from servitude) have in fact been violated, who are the intended beneficiaries of
these rights.4 Complainants who are not in fact victims also have some rights—for example, that their
lives should not be endangered—but they are primarily the unintended beneficiaries of the duties of
the state towards victims.
The body of this article is in two parts. The first discusses the position of the victim in relation to the
investigation, prevention and prosecution of human trafficking, with particular emphasis on the rights of
trafficking victims, and victims in general, under human rights law and EU law. The second part considers
the tensions that arise within the domestic law of evidence between the protection of (alleged) victims and
the defendant’s right to a fair trial. We argue that protection of victims does not justify curtailing the rights
of defendants to introduce evidence, or ask questions in cross-examination, of potentially substantial
probative value, however distressing they may be. The protection of victims and witnesses does, however,
justify a relatively flexible approach to the admission of hearsay evidence. There is a dearth of research on
how the law of hearsay—or most of the other rules we discuss—are applied in practice, either in trafficking
cases or generally; but whether there is scope for more extensive use of hearsay in trafficking cases is
perhaps the most important practical question raised by the discussion that follows.

Part I: Victims and the Investigative Process

An effective investigation by the police, and/or another agency such as the Gangmasters and Labour
Abuse Authority,5 is needed to bring an offender to justice. Central to the success of human trafficking
prosecutions is the involvement and cooperation of human trafficking victims as witnesses. Human
trafficking is a covert crime which presents complex evidential issues. Victims of modern slavery and
human trafficking, whether for sexual exploitation or labour, can be among the most vulnerable of
witnesses, often belonging to socially excluded groups and requiring significant support. However, they
are most often treated as the primary source of evidence, so that securing their cooperation plays an
important role in a successful prosecution. Studies of law enforcement responses to human trafficking
suggest that victim cooperation is central to the success of human trafficking prosecutions6 and is one of
the most common challenges faced by law enforcement in the identification and investigation of human

2. National Audit Office, Reducing Modern Slavery (HC 630, 2017) para. 4.9.
3. Ibid., 4.10.
4. Our use of the concept of a right accords with D. Lyons ‘qualified beneficiary theory’: Rights, Welfare and Mill’s Moral Theory
(OUP: Oxford, 1994), 29–30.
5. See, for example, ‘Trafficking Duo get Six Years Each After Joint Investigation’ (20 May 2016). Available at: http://
www.gla.gov.uk/whats-new/press-release-archive/180516-trafficking-brothers-get-six-years-each-after-joint-investigation/
(accessed 4 Jan 2018).
6. F. Laczko and M. A. Gramegna, ‘Developing Better Indicators of Human Trafficking’ (2003) 10 Brown J World Affairs 179.
140 The Journal of Criminal Law 82(2)

trafficking cases.7 The percentage of successful prosecutions for human trafficking offences shows that
there was a rise in unsuccessful outcomes due to victim issues, from 31.1 per cent in 2015–16 to 43.9 per
cent in 2016–17. Subsequently, the number of human trafficking convictions fell from 192 in 2015–16 to
181 in 2016–17.8 The UK’s Anti-Slavery Commissioner, Kevin Hyland, in his first annual report stated
his concern that ‘From the limited data that is gathered on victims’ circumstances via the current NRM
system through to compromised crime recording, a lack of intelligence reporting and evidence-based
operational action, victims both present and future are being failed’.9 This was reflected in HM Inspec-
torate of Constabulary’s report which stressed the urgent need to consider ‘victimless’ or ‘evidence-
based’ prosecutions for modern slavery and human trafficking investigations for various reasons: most
importantly that victims may be too vulnerable to support a prosecution.10 Building cases through
evidence-based prosecutions without the cooperation of an alleged victim has been encouraged in the
recent CPS Response to Modern Slavery Act,11 although the report also acknowledges that ‘[t]here is no
specific CPS legal or policy guidance on “victimless” prosecution for human trafficking, slavery and
forced labour offences’.12 The Inspectorate’s report also highlighted the effective use of a wide range of
investigative tools and techniques, particularly covert surveillance, through organised crime structures in
order to dismantle the criminal networks but also to ensure victims are safeguarded.13
Prosecution should be seen as part of a wider strategy against trafficking and exploitation, in which
measures to reduce the demand for exploited labour (including the exploitation of sex workers) is a
central element. The most promising approaches adopt a form of ‘responsibilisation strategy’, in which
corporations, non-government organisations (NGOs) and individual citizens are, in Garland’s words,
‘persuaded to exert their informal powers of social control, and if necessary, to modify their usual
practices, in order to help reduce criminal opportunities and enhance crime control’.14 In the crimin-
ological and sociological literature, the concept of ‘responsibilisation’ often has negative connotations,
being viewed as part of a neo-liberal trend towards privatising functions that were formerly seen as
belonging to the state.15 In the context of human trafficking, however, we would argue that such an
approach represents a realistic understanding of the market-driven nature of the crime, as well as the
important role of the voluntary sector in working with victims.16
In this context, the main aim of ‘responsibilisation’ is to make the potential consumers of trafficked
and exploited labour—from large corporations17 to individual buyers of sexual services18—accept

7. H. J. Clawson, M. Layne and K. Small, Estimating Human Trafficking into the United States: Development of a Methodology
(Caliber: Fairfax, VA, 2006).
8. HM Crown Prosecution Service Inspectorate (HMCPSI) Review of the CPS Response to the Modern Slavery Act 2015
(December 2017), para. 2.8.
9. Independent Anti-Slavery Commissioner, Annual Report 2015–16, 42.
10. HM Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS), Stolen Freedom: The Policing Response to
Modern Slavery and Human Trafficking (2017), 60.
11. HMCPSI, above n. 8, para. 1.4.
12. Ibid., para. 5.14.
13. HMICFRS, above n. 10, paras 5.13–5.17.
14. D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society. (Oxford University Press: Oxford,
2002) 126; See also, S. Fouladvand, ‘Decentering The Prosecution-Oriented Approach: Tackling Both Supply and Demand in
the Struggle Against Human Trafficking’ (2017) International Journal of Law, Crime and Justice (in press).
15. See, for example, J. Bennett, ‘They Hug Hoodies, Don’t They? Responsibility, Irresponsibility and Responsibilisation in
Conservative Crime Policy’ (2008) 47 Howard Jnl of Crim J 351; A. Bednarek, ‘Responsibility and the Big Society’ (2011)
16(2) Sociological Research Online 17; J. Mockeridge, ‘Responsibilisation in the Youth Justice System: Repositioning
Marginalised Knowledge’ in K. Atkinson, A. R. Huber and K. Tucker (ed.), Voices of Resistance: Subjugated Knowledge and
the Challenge to the Criminal Justice System (Liverpool, Liverpool John Moores University/Bristol EG Press, 2017).
16. Fouladvand, above n. 14.
17. That is, those with an annual turnover exceeding £36 m, which are required to publish statements under the Modern Slavery
Act 2015, s. 54.
18. See, for example, Sexual Offences Act 2003 s. 53A.
Ward and Fouladvand 141

responsibility for their potential use of exploited labour. There is, however, a concern about the extent to
which the state also holds victims themselves responsible for playing their part in the crime control
process. For example, Jo Goodey argues that, under some of the international legal instruments discussed
below, ‘trafficking victims have a right to access criminal justice and social services, but only when they
take on responsibilities to the State as witnesses’.19 It is a significant aspect of the ‘responsibilisation
strategy’ that the police foster good relations with voluntary sector organisations working with victims
with a view to those organisations encouraging their clients to provide intelligence to the police, and
perhaps to become prosecution witnesses.20 The idea that victims and witnesses in general have respon-
sibilities to the state is endorsed in one of the most important recent judgments on criminal evidence, R v
Riat: ‘a degree of (properly supported) fortitude can legitimately be expected [of a fearful witness] in the
fight against crime’.21
For any such ‘responsibilisation of the victim’ to be acceptable, it has to be coupled with a recognition
of the victim as a bearer of rights which the state has a responsibility to uphold (whether or not the victim
is a citizen of that state). In designating human trafficking as a form of ‘modern slavery’, Parliament has
recognised it as an offence which violates individual rights in a fundamental way, indeed which denies
the victim the status of rights-bearing subject.22 The idea that such a violation of the victim’s rights gives
victims (or those credibly claiming to be so) certain rights in the legal process is, as we shall see,
recognised in international and domestic law. The uncomfortable fact remains, however, that those
victims who seek to vindicate their rights through the criminal justice process take on what may an
extremely onerous role, and there are limits to the extent to which the state can reduce the burden on
witnesses while still respecting the rights of defendants. In the case of (alleged) human trafficking
victims, the likelihood that they will suffer damaging attacks on their credibility is heightened by the
fact that claiming to be a victim may have certain advantages, which can be portrayed as an incentive to
false claims particularly to extend the support from National Referral Mechanism (NRM) beyond the 45
days recovery period23 and also to secure their right to remain in the UK. Moreover, victims may fail to
conform to an ideal of pure, passive victimhood, but may, for example, have agreed to enter the country
to work in the sex industry.24
The UK has opted out of the EU Residence Permit Directive25 which purports to offer third-country
nationals the opportunity to ‘cooperate freely and hence more effectively if their legal position in the
country was assured’.26 As Roth puts it, the Directive in fact was an incentive for the victims to expose
themselves to further risk from their traffickers and to other consequences, such as potential stigmatisa-
tion.27 Such an incentive can, in fact, treat traumatised victims of human trafficking as instruments of
law enforcement to cooperate with the authorities in the investigations and criminal proceedings.28

19. J. Goodey, ‘Sex Trafficking in Women from Central and East European countries: Promoting a “victim-centred” and “women-
centred” approach to Criminal Justice intervention’ (2004) 76 Feminist Review 26.
20. HMICFRS, above n. 10 at 72.
21. R v Riat [2012] EWCA Crim 1509, [16].
22. The claim that every offence of trafficking under the Modern Slavery Act 2015 (which may involve only a short journey with
some form exploitation in view) amounts to anything akin to chattel slavery is, however, problematic. See J. O. Davidson,
Modern Slavery: The Margins of Freedom (Palgrave: Basingstoke, 2015); V. Stoyanova ‘Dancing on the Borders of Article 4:
Human Trafficking and the European Court of Human Rights in the Rantsev Case’ (2012) 30 NQHR 163.
23. C. Haughey, (2016) The Modern Slavery Act Review, 25. Available at: https://www.gov.uk/government/publications/modern-
slavery-act-2015-review-one-year-on (accessed 15 Jan 2018).
24. Goodey, above n. 19.
25. Council Directive 2004/81/EC of 29 April 2004, OJ L 261/19 (6 August 2004).
26. Council Directive 2004/81/EC of 29 April 2004, OJ L 261/19 (6 August 2004). Preamble, para. 11.
27. V. Roth, Defining Human Trafficking and Identifying its Victims: A Study on the Impact and Future Challenges of Inter-
national, European and Finnish Legal Responses to Prostitution-Related Trafficking in Human Beings (Leiden, Martinus
Nijhoff 2012) 187.
28. Ibid., 187.
142 The Journal of Criminal Law 82(2)

Victims’ Rights and Due Process

Following Doak, we can distinguish two types of victims’ rights: rights to protection and to participa-
tion.29 In a procedural or evidential context, the most important right of protection is a right to protection
against secondary victimisation. Rights to participation are enshrined, at least pending Brexit, in Direc-
tive 2012/29/EU (the ‘Victims Directive’),30 as the ‘right to be heard’. The Directive does not provide
this right with much substantive content, but does recognise that it can be fulfilled by allowing the victim
to make a written statement.
In European human rights law, the key case on the rights of victims of trafficking is Rantsev v Cyprus
and Russia.31 The Strasbourg court expounds the duties of states to afford protection against human
trafficking as a form of slavery, servitude or forced labour within the scope of ECHR Art. 4. It also, albeit
briefly, addresses victims’ rights to participation:

Like arts 2 and 3, art. 4 also entails a procedural obligation to investigate situations of potential
trafficking. . . . . For an investigation to be effective, it must . . . be capable of leading to the identification
and punishment of individuals responsible, an obligation not of result but of means. . . . . The victim or the
next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests.32

In Rantsev, the victim of trafficking was dead, and this may have encouraged the court to formulate
the right by analogy with the rights of next of kin under Art. 2. As the ‘investigation’ includes the whole
process leading to punishment, it appears that the trial is an aspect of the process in which the victim has
a right to be involved, to the extent necessary to safeguard her legitimate interest in establishing that her
right has been violated.33 The obligations of states under Rantsev extend to any case where there is ‘a
credible suspicion’ of human trafficking.34
The UN Protocol on Trafficking in Persons35 provides, in Art. 6(2):

Each State Party shall ensure that its domestic legal or administrative system contains measures that provide
to victims of trafficking in persons, in appropriate cases . . .
(b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of
criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence.

While this wording is similar to the more general Declaration of Basic Principles of Justice for
Victims of Crime,36 it goes further by requiring assistance, rather than merely allowing victims to
express their views. The reference to ‘views’ is not exactly apt: what is important is that victims should
able to communicate their experiences to the court and have them taken into respectful consideration.
Special measures for vulnerable witnesses, admission of hearsay in certain circumstances, restrictions on

29. J. Doak, Victims Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Oxford, Hart, 2008), chs
2–3.
30. The Victims’ Directive sets out the basic rights afforded to victims of crime across the EU and came into force on 16
November 2015.
31. (2010) 51 EHRR 1, [288]. See also CN v UK (2013) 56 EHRR 54, [59].
32. Ibid., [288]. See also CN v UK (2013) 56 EHRR 54, [59].
33. See also Perez v France (2005) 40 EHRR 39, [72]; Gäfgen v Germany (2011) 52; V. Stoyanova, Human Trafficking and
Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law (CUP: Cambridge, 2017) 368–9.
34. Rantsev, (2010) 51 EHRR 1, [286]; CN (2013) 56 EHRR 54 [69–71].
35. Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime (2000). Available at: http://www.ohchr.org/EN/Professiona
lInterest/Pages/ProtocolTraffickingInPersons.aspx (accessed 20 February 2018).
36. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, General Assembly Resolution
40/34, Annex (1985), Art. 6(b). Available at: https://www.unodc.org/pdf/compendium/compendium_2006_part_03_02.pdf
(accessed 20 February 2018).
Ward and Fouladvand 143

impugning victims’ character or sexual offence complainants’ sexual history, can all be seen as protect-
ing the ‘right to be heard’.37
EU Directive 2011/36 ‘on preventing and combating trafficking in human beings and protecting its
victims’ focuses on the right to protection against secondary victimisation:

Victims of trafficking who have already suffered the abuse and degrading treatment which trafficking
commonly entails . . . should be protected from secondary victimisation and further trauma during the crim-
inal proceedings. Unnecessary repetition of interviews during investigation, prosecution and trial should be
avoided, for instance, where appropriate, through the production, as soon as possible in the proceedings, of
video recordings of those interviews.38

The EU Victims Directive is somewhat less specific, requiring only that interviews be kept to the
minimum necessary.39 The latter Directive does, however, amount to a recognition that victims in
general—defined as natural persons who have been harmed by crimes40—have broadly similar rights
to participation and protection. We can sum this up by saying that victims have a right to a fair
opportunity to participate in a fair trial of anyone whom they and/or the state accuse of violating their
rights. They also have a right that such a trial be conducted, so far as is consistent with fairness to the
accused, in a way that minimises the risk of ‘secondary victimisation or further trauma’.41 These
principles of effective participation and minimising former trauma also underlie Ellison and Munro’s
recent view of criminal procedure through a ‘trauma-informed lens’.42 The integration and recall of
painful traumatic experiences and events is extremely complex, involving ‘chaotic, fragmented images,
somatic affects, and bodily enactments’.43 Ellison and Munro focus on special measures for vulnerable
witnesses and the judicial control of cross-examination, but the goal of enabling victims to be involved in
proceedings without secondary victimisation or further trauma raises a wider range of evidential issues.
As we shall illustrate with respect to human trafficking proceedings, the measures that help to secure
the victim’s right to participate in the legal process include not only special measures but the use of
written or recorded statements as hearsay evidence.44 They also include restrictions on non-defendants’
bad character and sexual history evidence to the extent that these protect complainants against being
unfairly discredited, rendering their participation in proceedings ineffective. The protection of victims
against secondary victimisation and further trauma is a further justification for these rules, as well as
more general control of cross-examination. Any move towards a more victim-centred, trauma-sensitive
approach therefore has implications not just for courtroom procedure but also for the core rules of
evidence law.

Identifying and Interviewing Victims

Before any question of a victim giving evidence arises, the first hurdle is to identify the individual as a
victim of human trafficking and to remove them from harm. Victims who come into contact with the
police are not always recognised as such and therefore remain in the hands of those who are exploiting
them. Others are arrested as offenders or illegal immigrants.45

37. Directive 2012/29/EU, Art. 10.

38. Directive 2011/36, Art. 20.
39. Directive 2012/29/EU, Art. 20.
40. Ibid. Art. 2(1)(a)(i); subpara (ii) extends to family members of homicide victims.
41. See above n. 38.
42. L. Ellison and V. E. Munro ‘Taking Trauma Seriously’ (2017) 21 E&P 183.
43. Y. Yovell, ‘From Hysteria to Post Traumatic Stress Disorder: Psychoanalysis and the Neurobiology of Traumatic Memories’
(2000) 2 Neuro-Psychoanalysis 171.
44. Dir 2012/29 EU, para. 4.1.
45. See HMICRFRS, above n. 10 at 60.
144 The Journal of Criminal Law 82(2)

Identifying victims is particularly difficult because many victims are reluctant to work with state
authorities in order to obtain service and assistance out of fear and lack of trust, preferring to work with
NGOs, some of which do not have full capabilities to meet victims’ due to funding. Victims often choose
not to identify themselves as victims, which thus disenfranchises them from access to state services and
protection.46 Reasons for this reluctance, among others, may include threats made to the victim or to his
or her family; concerns about immigration status; and wariness of authorities based on the victims’
previous experiences in their home countries.47 Korzinski describes how traffickers ‘force the victim
into a position of isolated helplessness . . . completely reliant on the trafficker for her survival’.48 As a
result of psychological manipulation, victims may remain with their exploiters for long periods without
attempting to escape or alert the authorities, and the defence may present such behaviour as evidence that
no exploitation has occurred.49
Following an effective identification system, victims’ human rights should be protected50 and they
should be entitled to support and protectives measure(s) provided by the state. Supporting victims is a
challenging task particularly during the recovery and reflection period.51
One of the main challenges law enforcement faces in investigating human trafficking cases is that the
victim’s or witness’s distrust of law enforcement may lead to ineffective interviews where the interviewer
does not fully understand the problem.52 A covert investigation might be conducted to utilise cooperating
witnesses or informants. However, law enforcement authorities should ensure proper procedures and
investigative technique in order to obtain credible information and evidence and protect victims.53
A comprehensive criminal justice response to human trafficking should include measures for the
protection and support of trafficked victims alongside measures to prosecute human traffickers. Victim
protection and support policy measures should not be conditional on a trafficked victims’ willingness to
cooperate with law enforcement officers in their criminal investigations, which to a greater or lesser
extent it appears to be in some instances. Victims of human trafficking are often reluctant to cooperate in
a criminal investigation due to their fear of the traffickers and lack of alternatives to the trafficking
situation, distrust of law enforcement and feelings of shame.54 It is in this context where unreliable
evidence given by the victim makes it hard for the prosecution to prove the elements of the trafficking
crime and to secure the right punishment in relation to the severity of the crime that offenders have
committed.55 Testai’s study in Italy suggests that there should be alternatives to victim protection

46. E. Cockbain and H. Brayley-Morris, ‘Human Trafficking and Labour Exploitation in the Casual Construction Industry: An
Analysis of Three Major Investigations in the UK Involving Irish Traveller Offending Groups’ (2017) Policing (advance
articles) 14; A. Sölkner, Needs Assessment of the National Referral Mechanism for Victims of Trafficking in Human Beings in
Ukraine: Assessment Report. Available at: https://kidsempowerment.org/needs-assessment-of-the-national-referral-mechan-
ism-for-victims-of-trafficking-in-human-beings-in-ukraine-assessment-report.
47. See HMICFRS, above n. 10 at 16.
48. M. Korzinski, ‘Identifying and Responding to Trauma in Victims of Trafficking and Exploitation’ in P. Chandran (ed.),
Human Trafficking Handbook (LexisNexis: New York, 2011) 71.
49. Cockbain and Brayley-Morris, above n. 46 at 14.
50. OSCE/ODIHR, (2004) Guiding Principles on Human Rights in the Return of Trafficked Persons, Published by the OSCE
Office for Democratic Institutions and Human Rights (ODIHR). Available at: www.osce.org/odihr/124268?download¼true
(accessed 20 February 2018).
51. See, for example, M. Malloch and P. Rigby (ed.), Human Trafficking: The Complexities of Exploitation (Edinburgh University
Press: Edinburgh, 2016).
52. B. W. Orsini, ‘Law Enforcement Considerations for Human Trafficking’ in M. C. Burke (ed.), Human Trafficking: Inter-
disciplinary Perspectives (Routledge: Abingdon, 2013), 197.
53. Ibid., 200.
54. A. Farrell, et al., Identifying Challenges to Improve the Investigation and Prosecution of State and Local Human Trafficking
Cases (NIJ: Washington, DC, 2012) 107.
55. United Nations Global Initiative to Fight Human Trafficking (UN.GIFT), 2008. From Protection to Prosecution – A
Strategic Approach. Available at: www.un.org/ga/president/62/ThematicDebates/humantrafficking/ebook.pdf (accessed
15 January 2018).
Ward and Fouladvand 145

policies or to get testimony from them based on a genuine human rights approach which would not link
protection to witness’ testimony but would effectively give them access to a range of services to recover
and reintegrate into the society.56
The obligation to identify victims of human trafficking is contained in the Principles and Guidelines
on Human Rights and Human Trafficking adopted by the UN Economic and Social Council in 2002.
Principle 8 requires States to ‘ensure that trafficked persons are protected from further exploitation and
harm and have access to adequate physical and psychological care [which] shall not be made conditional
on the capacity or willingness of trafficked persons to cooperate in legal proceedings’.57 Under Arts 24
and 25 of the UN Convention against Organised Crime,58 state parties are obligated to provide ‘effective
protection’ as well as ‘assistance’ to victims and witnesses of organised crime offences covered by the
Convention. The measures should protect witnesses from threats, intimidation or bodily injury, with a
full witness protection programme to be put in place as a last resort.59 The UN Human Trafficking
Protocol and Council of Europe Convention on Action against Trafficking in Human Beings also
highlight the importance of assisting victims of trafficking and, as we have seen, afford some recognition
of their procedural rights. Article 27 (1) of the Council of Europe Convention on Action against
Trafficking in Human Beings provides that States shall ensure that investigation into and prosecution
of offences under the Anti-Trafficking Convention are ‘not dependent upon the report or accusation
made by a victim, at least when the offence was committed in whole or in part on its territory’. The more
prosecutions can be ‘evidence led’,60 that is, based on evidence other than the victims’ testimony,
including undercover operations61 or covert surveillance, the better the prospect of securing convictions
without causing further trauma to victims. In practice, however, the difficulty of mounting such oper-
ations may make heavy reliance on victim testimony unavoidable.62
Article 10 of the Council of Europe (CoE) Convention on Action against Trafficking in Human
Beings obliges each state party to identify and support victims through a NRM which is in fact a process
of ‘locating and identifying potential victims of trafficking’.63 In the UK, potential victims of human
trafficking will be assessed by a competent authority (CA) to decide whether there are reasonable
grounds to believe they are victims of modern slavery or human trafficking.64 If a positive decision is

56. P. Testai, ‘Victim Protection Policy in a Local Context: A Case Study’ in M. C. Burke (ed.), Human Trafficking: Inter-
disciplinary Perspectives (Routledge: Abingdon, 2013) 207; It is worth mentioning here (from the same source) that the
principle of ‘victim protection’ was established in Italy through Art. 18 of the Italian immigration law (Law Decree n. 286/
1998), which grants a residence permit for ‘reasons of social protection’ to foreign individuals who are administratively
defined as victims of trafficking.
57. Recommended Principles and Guidelines on Human Rights and Human Trafficking, Report of the High Commissioner for
Human Rights to the Economic and Social Council, UN Doc. E/2002/68/Add.1.
58. United Nations Convention against Transnational Organized Crime, adopted by General Assembly resolution 55/25 of 15
November 2000 and entered into force on 29 September 2003.
59. United Nations Office on Drugs and Crime (UNODC), 2012. Victim Assistance and Witness Protection. Available at:
www.unodc.org/unodc/en/organized-crime/witness-protection.html (accessed 15 January 2018).
60. HM Inspectorate of Constabulary, Increasingly Everyone’s Business: A Progress Report on the Police Response to Domestic
Abuse (Birmingham, HM Inspectorate of Constabulary, 2015), 94–8.
61. B. W. Orsini, ‘Law Enforcement Considerations for Human Trafficking’ in M. C. Burke (ed.), Human Trafficking: Inter-
disciplinary Perspectives (Routledge: Abingdon, 2013) 201.
62. Cockbain and Brayley-Morris, above n. 46 at 15.
63. The UK National Referral Mechanism for victims of human trafficking is under review and changes to the NRM have been
piloted in West Yorkshire police force area and the South West from 3 August 2015. The outcome of these have not been
published yet.
64. These can be referred by ‘first responders’ (such as the UK police, UK Borders Agency (UKBA) and certain non-government
organisations (NGOs); for instance, the Salvation Army or Barnardo’s, to one of two competent authorities (CA): the National
Crime Agency’s (NCA) Modern Slavery Human Trafficking Unit (MSHTU) or the Home Office Visas and Immigration
(UKVI)). The CA will then determine whether there are ‘reasonable grounds’ to suspect that the individual is a victim of
trafficking. See Available at: http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-capabilities/uk-
human-trafficking-centre/national-referral-mechanism (accessed 15 January 2018).
146 The Journal of Criminal Law 82(2)

reached, the individual will be able to benefit from protection and support services for a 45-day
‘Recovery and Reflection’ period during which the CA will investigate the individual’s case and come
to a conclusive decision as to whether the individual is a victim of trafficking. The purpose of this
reflection period is to help individuals to recover from their ordeal and they should be given the
information about their future options, which can include choosing to return home or assisting the
UK police in their enquiries to prosecute their traffickers. Reflection periods, therefore, have the
potential to create an environment that encourages victim cooperation in the prosecution of traffickers.
If a CA decides an individual is not a victim of trafficking, then the prosecution would be unlikely to
use them as a witness as their credibility would be questioned by the defence. The absence of a formal
right of appeal for trafficking victims who receive a negative conclusive grounds decision has been
criticised as being inconsistent with the right to an effective remedy guaranteed by ECHR Art. 13.65 The
most recent US State Department Trafficking in Persons Report stated that:

Although the [UK] government meets the minimum standards, the victim identification and referral system,
did not consistently assist all those requiring help, and the quality of care varied between jurisdictions in the
UK. The government did not always ensure victim care following a 45-day reflection period, after which
authorities in many cases deported foreign victims who were not assisting in an investigation and
prosecution.66

In cases of trafficking in persons, statements by victims are often inconsistent or even include outright
falsehoods.67 While in general the consistency of a witness statement will be an important element for
courts to consider in their assessment of credibility, in cases of trafficking, inconsistencies may arise
from a range of reasons other than lack of credibility including lapses in memory, confusion about the
chain of events or traumatic reactions.68 It is well-documented that trafficking victims will often recount
inconsistent stories as a result of the trauma they have experienced, a fear of the authorities and/or the
repercussions of speaking out which present some unique barriers to the investigation of human traffick-
ers.69 The fear a victim may have in assisting the law enforcement officers could be enormous. For
instance, the fear from the traffickers that might harm victims’ family members in their home country;
shame, particularly, for the victims of sexual exploitation who were forced into prostitution; self-blame
and guilt that prevent them from leaving the trafficking situation which contribute to their inability to
recall the exact details of their victimisation.70
As mentioned above, the reflection period plays an important role in the recovery of victims;
however, this has been also a contentious issue for some CoE Member States which view it as a potential
‘pull factor’ for illegal immigration. It is feared that some illegal immigrants may make false claims of
being trafficked in order to receive the benefits of protection and support offered to ‘genuine’ victims of
trafficking.71 For example, in the UK under the NRM, as a result of obligations under the Trafficking
Convention (Art. 14 (1) (b)), a victim of trafficking may be granted ‘discretionary leave to remain’
(DLR) for a period of up to one year if they are assisting the authorities in their criminal investigations.

65. Anti-Trafficking Monitoring Group, Wrong Kind of Victim (2010). Available at: www.ecpat.org.uk/Handlers/Down
load.ashx?IDMF¼9b1a0aa4-8645-4d61-ade8-e5e7257ddc98 (accessed 12 January 2018).
66. US Department of State, Trafficking in Persons Report, June 2017, 411–2 Available at: https://www.state.gov/j/tip/rls/tiprpt/
2017/ (accessed 12 January 2018).
67. United Nations Office on Drugs and Crime (UNODC), ‘Evidential issues in Trafficking in Persons Cases’ 2017. Available at:
www.unodc.org/documents/human-trafficking/2017/Case_Digest_Evidential_Issues_in_Trafficking.pdf (accessed 15 Jan
2018).
68. J. Lindholm, A. C. Cederborg and C. Alm, ‘Adolescent Girls Exploited in the Sex Trade: Informativeness and Evasiveness in
Investigative Interviews’ (2014) 16 Police Practice and Research: An International Journal 197.
69. For example, Cockbain and Brayley-Morris, above n. 46.
70. E. Hopper, ‘Underidentification of Human Trafficking Victims in the United States’ (2004) 5 Journal of Social Work
Research and Evaluation 125–36.
71. UN.GIFT, above n. 55.
Ward and Fouladvand 147

Although potential victims are under no obligation to cooperate with the police in their investigations,72
by their remaining in the UK, the police and legal professionals involved in the criminal investigation
will have easier access to the victims to obtain evidence while the victims can benefit from the provided
support necessary for their recovery. This is an area which the defence can attempt to weaken the
prosecution’s case by claiming that the victim was incentivised to assist the police by the promise of
DLR.
An important question here is: how can the ‘genuine’ and ‘deserving’ victim be distinguished
from the ‘fraudulent’ or ‘undeserving’? According to O’Connell Davidson, this binary is particu-
larly salient in the depiction of the ‘trafficking victim’, mainly victims of sexual exploitation.73
Both the ‘genuine’ victim of evil sex traffickers and the ‘bogus’ victim playing the system can
serve as part of the rhetoric justifying state coercion against migrants and sex workers.74 As an
example of the latter, it has been reported that a growing number of pregnant Albanian women who
pay criminal gangs to smuggle them into Britain are falsely claiming to be sex trafficking victims
to gain asylum. Anthony Steen, the UK’s former special envoy on human trafficking, claimed that
‘while the number of claims from Albanian women who claim to have been sex trafficked had
reached a record high, government investigations found most cases were fabricated’.75 Whatever
the ideological uses of the genuine/fabricated binary, it is one that courts cannot avoid when the
evidence of alleged victims is challenged. The courts are seemingly willing to challenge expert
evidence which simply recounts the testimony of alleged trafficking victims, and NRM decisions
regarding such status are not binding on the court.76
Notwithstanding such anxieties, courts in various jurisdictions have been ready to accept the evidence
of complainants despite, or even because of, inconsistencies in their evidence which can be attributed to
intimidation.77 The recent United Nations Office on Drugs and Crime report on Evidential Issues in
Trafficking in Persons Cases78 gives examples from a range of jurisdictions.
In many cases, the argument that inconsistencies in a complainant’s testimony can best be explained
as effects of their victimisation is a perfectly reasonable one.79 Before it is accepted as a basis for
conviction, however, fairness demands that the defence have ample opportunity to advance the alter-
native explanation that the complainant is inconsistent because she or he is lying. This raises difficult
questions about just how far the defence need to be allowed to go. Do they have to be able to question a
witness about every single untruth or inconsistency, or does that pose too great a risk of secondary
victimisation or of unfairly discrediting the complainant, particularly where the fact-finder is a lay jury
inexperienced in the effects of trauma? In cases such as Rehman80 and Jonas,81 discussed below, trial

72. Home Office, United Kingdom Borders Agency, 2010. Victims of Trafficking: Guidance for Competent Authorities 106.
Available at: www.gov.uk/government/publications/victims-of-trafficking-guidance-for-competent-bodies (accessed 15
January 2018).
73. J. O. Davidson, ‘New Slavery, Old Binaries: Human Trafficking and the Borders of “Freedom”’ (2010) 10 Global Networks
244.
74. M. Malloch and P. Rigby (ed.), Human Trafficking: The Complexities of Exploitation (Edinburgh University Press: Edinburgh,
2016) 183.
75. Available at: http://news.trust.org//item/20141110172225-y5yir/ (accessed 20 February 2018).
76. See R v Joseph [2017] EWCA Crim 36.
77. The US State Department urges prosecutors to see ‘a reluctant or untruthful witness as . . . evidence of the trafficker’s success
in controlling the victim’: Trafficking in Persons Report 2017, above n. 68 at 7.
78. United Nations Office on Drugs and Crime (UNODC), Evidential issues in Trafficking in Persons Cases (2017). Available at:
www.unodc.org/documents/human-trafficking/2017/Case_Digest_Evidential_Issues_in_Trafficking.pdf (accessed 12 Jan-
uary 2018).
79. On the acceptance of testimony as a form of inference to the best explanation, see A. Gelfert, A Critical Introduction to
Testimony (Bloomsbury: London, 2014) 136–42.
80. R v Rehman, Rasheed and Ali [2017] EWCA Crim 106.
81. R v Jonas [2015] EWCA Crim 562.
148 The Journal of Criminal Law 82(2)

judges have protected complainants against what they saw as unduly repetitive or detailed questioning,
and these restrictions have been upheld on appeal.
Further difficulties arise from the process of interviewing complainants, particularly when these
interviews, conducted in accordance with Achieving Best Evidence (ABE) guidelines, are used as
witness’s evidence in chief.82 Specialist-trained interviewers in line with ABE guidance will interview
victims wishing to support prosecution in order to obtain statements and intelligence regarding offender
methods before relocation occurs through the NRM.83
According to Kaur,84 due to the trauma they have experienced and feelings of shame and fear, their
testimony is often disjointed and a full account of their experiences may only come to light over a course
of follow up interviews.85 This can be difficult to present to a jury. The CPS Inspectorate ‘were told of
lengthy incoherent accounts, with or without interpreters, provided by way of ABE that could not be
used [as evidence in chief], being too long and too unwieldy to edit’.86 Multiple interviews are often
necessary to build trust and rapport between law enforcement and traumatized victims. However,
multiple interviews can have the reverse effect of re-traumatizing victims rather than creating trust and
ultimately cooperation in a case against the perpetrator.87 In a US study, Warpinski acknowledges that
trafficking victims can be challenging for prosecutors to work with, by depriving them of voice, choice
and validation, but she found that judges were concerned about secondary victimisation by
prosecutors.88
The Court of Appeal has grappled with some of these issues in Rehman,89 a case of rape, trafficking
and sexual activity with a child. The complainant was a 13-year old girl and the ABE interviews with her
lasted, depending on which of two passages in the Court of Appeal judgment is correct, either 10½ hours
or at least 13 hours.90 The prosecution acknowledged ‘that in the first interviews she told many lies and
concocted detailed but false stories. They relied on the last interviews, in which she described offences
committed by the appellants’.91 The judge agreed that only the interviews—8 hours in length—on which
the prosecution relied should be played to the jury as the complainant’s evidence in chief. The jury was
also provided with a 20-minute excerpt from the earlier interviews, and a summary of the lies and
inconsistencies in these interviews. In upholding these decisions, the Court of Appeal remarked that it
was not necessary for every previous inconsistent statement to be put to such a vulnerable witness, either
by questioning or by playing the interview. The combination of admissions by the prosecution, the
excerpt from the earlier interviews and questions put to the complainant in cross-examination had given
the jury ‘sufficient detail of the lies told and sufficient material to show C’s demeanour’.92
As far as we can tell from the limited detail in the judgment, this seems a fair approach in that it avoids
making the evidence needlessly confusing while communicating clearly to the jury the decision they
have to make between two competing explanations of the complainant’s lies. There was, however, one
particular lie by the complainant which was kept from the jury for reasons that exemplify the difficult
legal issues discussed below.

82. Youth Justice and Criminal Evidence Act 1999, s. 27.

83. HMICFRS, above n. 10 at 71.
84. K. Kaur, ‘Obtaining Evidence from Traumatised Trafficked Persons’ in P. Chandran (ed.), Human Trafficking Handbook:
Recognising Trafficking and Modern-Day Slavery in the UK (LexisNexis Butterworth: London, 2011) 103.
85. Ibid. 103.
86. HMCPSI, above n. 8 at para. 6.9.
87. Farrell, above n. 56 at 124.
88. S. Warpinski, Know Your Victim: A Key to Prosecuting Human Trafficking Offenses (2013). Available at: https://digi
talcommons.law.msu.edu/king/222/ (accessed 15 January 2018) 22.
89. R v Rehman, Rasheed and Ali [2017] EWCA Crim 106.
90. Ibid. [5], [25].
91. Ibid., [5].
92. Ibid., [53].
Ward and Fouladvand 149

Part II: Trafficking Victims and the Law of Evidence

Decisions to exclude certain defence evidence or lines of questioning, or to allow alleged victims’
testimony to be given anonymously or by way of hearsay statements, raise difficult issues about how
to reconcile the rights of victims with those of defendants. We shall explore four of these issues:
evidence of the complainant’s bad character; sexual history evidence; anonymous evidence; and hearsay
evidence from complainants ostensibly in fear.

Bad Character
Senior Investigating Officers interviewed by Cockbain and Brayley-Morris expressed concern about the
volume of ‘bad character’ evidence that had to be disclosed on victims and its potential to undermine
witness credibility.93 Cross-examination can be a painful and traumatic experience for vulnerable
witnesses, including victims of offences such as human trafficking. It can undermine the right to be
heard, if it prejudices a jury to such an extent that they do not fairly hear what the witness has to say.
Cross-examination is often combined with attacks on a witness’s character. The Criminal Justice Act
2003, s. 100, restricts the circumstances in which evidence of bad character can be used to discredit a
victim, but it allows such evidence where it is of ‘substantial probative value’. So although trial judges
can shield complainants from the distress, and unfair undermining of their credibility, that could result
from gratuitous ‘mud-slinging’, the need to allow the defence to air any legitimate ground for reasonable
doubt sets an important limit to such protection.
In the Rehman case discussed above,94 it is strongly arguable that the trial judge overstepped this limit
when he excluded evidence that the teenage complainant had previously made what she admitted was a
false allegation of abduction against a young man she regarded as her ‘boyfriend’. It seems hard to deny
that the probative value of this evidence was substantial. The defence case was that once again the
complainant was falsely alleging serious crime by ‘boyfriends’ with whom she had fallen out. The evidence
of the previous case would have shown that this was not just a crude appeal to a ‘rape myth’, but a claim that
the complainant had followed an unusual pattern of behaviour that she had adopted in the past.
Once it is accepted that bad character evidence has substantial probative value, there is no discretion
to exclude it.95 From a victim-centred perspective, this is unfortunate but, we submit, unavoidable. There
cannot be a fair trial where the defendant is barred from adducing evidence of substantial probative
value. The Court of Appeal in Rehman nevertheless held that the exclusion of this evidence was ‘within
the bounds of legitimate discretion’.96 If the court was using discretion in the strong sense, this cannot be
right, but it is more likely that what they meant by discretion is that whether the probative value of the
evidence is substantial is a fact-sensitive judgment with which the Court of Appeal is reluctant to
interfere. While the concern of both the trial judge and the Court of Appeal to minimise the distress
of a vulnerable young witness are commendable, their decisions stretch the legitimate boundaries of fact-
sensitive judgment.

Sexual History
Whatever the imperfections of its drafting,97 the overall aims of the Youth Justice and Criminal Evi-
dence Act 1999, s. 41, align with the view of victims’ rights outlined above. It protects ‘the right of

93. Above n. 48 at 14.

94. [2017] EWCA Crim 186. For more on the aspects discussed here see T. Ward, ‘Vulnerable Witnesses, ABE Interviews and
Bad Character’ (2017) 82 J Crim L 244.
95. R v Dizaei [2013] EWCA Crim 88; [2013] 1 Cr App R 31, [35].
96. [2017] EWCA Crim 186, [55].
97. See, for example, M. Redmayne, ‘Myths, relationships and Coincidences: The New Problems of Sexual History’ (2003) 7
E&P 75; P. Roberts and A. Zuckerman, Criminal Evidence, 2nd ed. (OUP: Oxford, 2010) 458–52; B. Brewis, Sexual
150 The Journal of Criminal Law 82(2)

complainants not to be subjected to unnecessary humiliation and distress when giving evidence’.98 By
protecting complainants against marginally relevant but potentially prejudicial99 attacks on their cred-
ibility, it helps to protect their ‘right to be heard’. At the same time, s. 41(2)(b) allows evidence of the
complainant’s sexual history to be admitted where its exclusion ‘might have the effect of rendering
unsafe a conclusion of the jury . . . on any relevant issue in the case’. What is problematic about s. 41 is
that, but for its creative interpretation (or rewriting) by the House of Lords,100 it would exclude evidence
that might render a conclusion unsafe but did not fall within any of the narrowly defined categories of
admissible evidence it sets out. A neglected aspect of s. 41 is its application to human trafficking for the
purposes of sexual exploitation,101 and a number of other offences related to sex work, such as control-
ling prostitution. Here too, the rigid wording of the section is a potential source of difficulty.
One issue, which arose in the Rehman case discussed above, is that while evidence that a witness has
previously made a false allegation of sexual behaviour does not in itself constitute evidence of sexual
behaviour, it may be impossible to introduce or challenge the evidence without raising issues of sexual
behaviour. In Rehman, the complainant had admitted making a false allegation of abduction against her
‘boyfriend’, a term that could denote a merely romantic relationship (especially given the youth of both
parties) but had sexual connotations. The prosecution would have wished to point out that the ‘boy-
friend’ had admitted to sexually touching the underage complainant, and they would have been free to do
so as s. 41 does not apply to prosecution evidence, although there is a strong argument that it should be
extended to curb unnecessarily intrusive prosecution questioning.102
For the reasons given above, we submit that this evidence ought to have been admitted, but in a way
that kept its distressing and intrusive nature to a necessary minimum. All that was relevant to the issue in
Rehman was the intense emotional relationship implied by the word ‘boyfriend’, in the context of which
the complainant had supposedly concocted her allegations, and there was no good reason for either the
defence or the prosecution to invade the complainant’s privacy by asking about any sexual contact
between her the man concerned. In this respect, s. 41 is arguably not restrictive enough. The Court of
Appeal should not, however, have used the fact that s. 41 could raise difficult issues as a reason for
excluding the potentially significant evidence of the false allegation.
Another issue about sexual history that can arise in trafficking cases is illustrated by Jonas.103 The two
complainants in this case gave evidence that they had been forced to work as prostitutes in Hungary before
being trafficked to England where further enforced prostitution awaited them. The defence challenged the
portrayal of the women as passive victims, claiming that they had freely chosen to become prostitutes and
to move to England; the defendants had merely helped them to ply their chosen trade in a new location. The
trial judge imposed restrictions on the cross-examination of the women about their lives in Hungary; these
were upheld on appeal as legitimate measures to protect vulnerable witnesses.
For reasons that are not entirely clear, no issue under s. 41 appears to have been raised, although any
defence questioning about the complainants’ careers as sex workers was undoubtedly within the scope of
the section. It was probably assumed that as they had given evidence in chief about the nature of their
past experience as prostitutes, the defence were entitled to seek to rebut it under s. 41(5). The difficulty
with this view is that it overlooks the requirement under s. 41(6) that any questioning or evidence must

Behaviour Evidence: A Critical Examination of Section 41 of the Youth Justice and Criminal Evidence Act 1999 (unpub-
lished PhD Thesis, Northumbria University: Newcastle upon Tyne, 2017).
98. R v A (No 2) [2002] 1 AC 45, [51] per Lord Hope.
99. For reasons given by Redmayne, above n. 99, ‘marginally relevant’ will often be a more accurate term than ‘irrelevant’; but
cf. C. McGlynn, ‘Rape Trials and Sexual History Evidence: Reforming the Law on Third-Party Evidence’ (2017) 81(5) J
Crim L 367.
100. R v A (No 2) [2002] 1 AC 45.
101. YJCEA 1999s 62(1)(b).
102. L. Kelly, J. Temkin and S. Giffiths, Section 41: an Evaluation of New Legislation Limiting Sexual History Evidence in Rape
Trials (Home Office: London, Research Report 20 June 2006) 13, 76.
103. [2016] EWCA Crim 37.
Ward and Fouladvand 151

relate to a ‘specific instance’ of past sexual behaviour. According to the Court of Appeal in White, the
mere fact that a woman has a history of paid sex work, or even that she has convictions for prostitution
offences at specific times and places, is not a sufficiently specific allegation of sexual behaviour to be
admitted under s. 41.104 Rather, ‘there must be something about the circumstances of a specific episode
of alleged sexual conduct by a complainant which has potential probative force’.105 The issue in White
was whether the mere fact of having worked as a prostitute had probative force under s. 41(3). It is a
different question whether such evidence can, in certain cases, have probative force under s. 41(5).
Evidence that the complainants’ sex work in Hungary had been freely chosen would have probative
force in rebutting their accounts of being trafficked to England against their will and compelled to work
under the control of the defendants. Nevertheless, it is difficult to see how such questions could be
confined to specific instances of sexual behaviour, unless the defence were in a position to ask about
individual clients.
Rook and Ward describe s. 41(6) as a rock ‘lurking beneath the surface’ of s. 41 and threatening the
fairness of trials,106 and this is one instance where the metaphor seems right. Section 41(6) is intended to
exclude general allegations of promiscuity in rape trials. In some human trafficking cases, it may need to
be very broadly construed in order to comply with the Human Rights Act by admitting evidence essential
to a fair trial, as the House of Lords did in R v A107 in respect of s. 41(3).
This does not render s. 41 nugatory as a protection for human trafficking victims. Even under a broad
interpretation of s. 41(6), leave should be given to question alleged victims about their sexual history
only to the extent that ‘a refusal of leave might have the result of rendering unsafe a conclusion of the
jury . . . on any relevant issue in the case’ (s 41(2)(b)). This might have been invoked in Jonas as a further
basis for some of the restrictions on questioning that the judge imposed (although much of the ques-
tioning was only obliquely related to their sex lives). The defence must, however, be given reasonable
scope to challenge the portrayal of the complainant as a passive victim of exploitation.
In both the areas we have considered, s. 41(2)(b) emerges as the key to a fair interpretation of the law.
This is no accident: s. 41(2)(b) encapsulates the law’s attempt to combine the defendant’s right to a fair
trial with the complainant’s rights to privacy, to effective participation in the trial (which can be fatally
undermined by unfair attacks on her credibility) and to protection against secondary victimisation. To
allow as much questioning as is necessary to ensure a safe verdict, and no more, is the most reasonable
way to combine these goals. If Parliament had trusted judges to apply this principle fairly, the rest of s.
41 would have been unnecessary. On the assumption that judges are now more sensitive to the needs of
victims and the dangers of ‘rape myths’ than they were in the 1990s,108 a broad test of ‘substantial
probative value’ may be preferable to the intricacies of s. 41.109

Anonymity and Risk

One of the most important and familiar cases on the rights of victims in criminal proceedings is Doorson
v Netherlands, where the ECtHR pointed out that although ECHR Art. 6 does not specifically protect
victims and witnesses, their rights to life, liberty, security of the person and privacy are protected by

104. R v White [2004] EWCA Crim 946.

105. Ibid. [16]. Arguably this adds ‘a gloss that Parliament had not intended’ to s. 41(6). B. T. Brewis, Sexual Behaviour Evidence:
A Critical Examination of Section 41 of the Youth Justice and Criminal Evidence Act 1999 (unpublished PhD Thesis,
Northumbria University: Newcastle upon Tyne, 2017) 135; See also P. F. G. Rook and R. Ward, Sexual Offences: Law and
Practice, 6th ed. (Sweet & Maxwell: London, 2016) 1464 n. 175.
106. Ibid., 26.178.
107. [2001] UKHL 25; [2002] 1 AC 45.
108. Brewis, above n. 107.
109. Cf. C. McGlynn ‘Rape Trials and Sexual History Evidence: Reforming the Law on Third Party Evidence’ (2017) J Crim L
367, 388; arguing for a test, modelled on Canadian and Scots law, of significant probative value not substantially outweighed
by the danger of prejudice to the administration of justice, 81(5).
152 The Journal of Criminal Law 82(2)

other articles of the Convention and ‘principles of fair trial also require that in appropriate cases the
interests of the defence are balanced against those of witnesses or victims called upon to testify’.110
There was no suggestion that the applicants had personally threatened any of the witnesses but the Court
accepted that, ‘Regard must be had to the fact, as established by the domestic courts and not contested by
the applicant, that drug dealers frequently resorted to threats or actual violence against persons who gave
evidence against them’.111
Thus, it appears that to justify the use of anonymous witnesses under Art. 6, or other measures that
limit the accused’s right of confrontation, it can be sufficient to show that the type of crime with which
the defendants are charged is such that if they are involved in it, there may be a real danger to the witness.
This approach sensibly avoids any suggestion that the court is prejudging whether the defendants are, in
fact, involved in that type of crime.
In considering a witness anonymity order under the Coroners and Justice Act 2009, s. 88(3), it appears
legitimate to take a similar approach. It is well established that human traffickers often resort to threats or
violence, not only against witnesses themselves but against family members in their countries of
origin.112 The Court of Appeal stressed in Mayers that the word ‘necessary’ imports a high standard
of proof—it is debateable whether this is equivalent to the criminal standard113—but evidence that the
witness or his/her family would be in grave danger if their evidence were true could well meet this
standard. Unfortunately in many cases, the identity of the witness is likely to be known to the defendants.
The fact that the defendants may have a very strong suspicion of who the witness is does not preclude its
being ‘necessary’ to avoid confirming their suspicions.114

Hearsay and Fear

The position is not so simple where the prosecution seeks to adduce hearsay evidence on the ground that
a witness is ‘in fear’. Unlike the anonymous witness provisions, CJA 2003 s. 116(1)(e) requires two
findings of fact about the mental state of the witness: that she is in fear, and that the fear is the cause of
her failure to give oral evidence (at all or in response to particular questions). It does not require that the
fear have any objective basis, but some evidence of such a basis is needed to justify resorting to hearsay
under ECHR Art. 6.115 According to the Court of Appeal in Shabir, when it is the prosecution that seeks
to rely on hearsay evidence they must prove both these matters to the criminal standard.116 Where it is
the defence that adduces the hearsay evidence the standard is presumably the civil one, as it was under
CJA 1988.117
The dilemma that this high standard of proof creates in human trafficking cases is obvious. Genuine
victims of trafficking, as we have seen, are often in great and well-founded fear, and the law should
enable their evidence to be admitted in cases where they cannot be persuaded to attend court (or submit
to video recorded cross-examination under YJCEA s. 28, which as yet, except in three Crown Courts,118

110. (1996) 22 EHRR 330, [70].

111. Ibid., [71].
112. M. H. Zimmerman and C. Watts, ‘Human Trafficking and Health: A Conceptual Model to Inform Policy, Intervention and
Research’ (2011) 73(2) Social Science & Medicine 327. See also H. Sadruddin, N. Walter and J. Hidalgo, ‘Human Traf-
ficking in the United States: Expanding Victim Protection Beyond the Prosecution Witness’, (2005)16 Stan L & Pol’y Rev
379–83.
113. ‘Case Comment: Anonymous Witnesses’ (2009) 13 E&P 150. What is ‘necessary’ may be a question to which neither the
criminal nor the civil standard applies: see Misick v R [2015] UKPC 31, [2015] 1 WLR 3215.
114. R v Powar [2009] EWCA Crim 254; [2009] 2 Cr App R 8.
115. Al-Khawaja v UK (2012) 54 EHRR 23.
116. [2012] EWCA Crim 2564, [64].
117. R v Mattey [1995] 2 Cr App R 409; see also R v Nkemayang [2005] EWCA Crim 1937.
118. Namely Leeds, Kingston and Liverpool, where its extension to sexual offence and human trafficking complainants is being
piloted: P. Cooper and M. Mattison, ‘“Section 28” and the Pre-recording of Cross-Examination’ (2018) 182 CL & J 7, 8.
Ward and Fouladvand 153

is available only for children and witnesses with mental or physical disabilities).119 But how is the court
to be satisfied to the criminal standard that a complainant has fallen into the hands of a criminal gang
with the power to intimidate her, when that is the very issue in dispute in the trial? A decision to deny the
defence the right to cross-examine a witness should not presuppose the truth of the very evidence the
defence is denied the right to challenge. Consequently, as Shabir acknowledges, it may be difficult to
establish fear without bringing the witness to court to face cross-examination about the genuineness of
their fear—although the court also acknowledges that in some types of case (which may well be thought
to include human trafficking), this is undesirable.120 It would be hard to devise a less satisfactory way of
upholding the rights of both witnesses and defendants.
In R v Ali,121 the defendants were alleged to have transported young teenage girls, after a period of
grooming, relatively short distances to out-of-the-way places where, having been plied with alcohol,
they were sexually assaulted or raped. One important point established by the Court of Appeal’s judg-
ment is that such brief ‘transport’ can constitute trafficking, and the judgment is also important for what
it says about the meaning of ‘consent’ under the Sexual Offences Act 2003. The evidential issue in this
case was that the ABE interview of a teenage girl, ‘GB’, was admitted as hearsay evidence on the ground
that she was in fear. The evidence of fear was a social worker’s statement that GB:

had said she was scared about going to court and the thought of coming to court gave her more pain and stress
than the actual incident and [the social worker’s] opinion was that [GB] had been emotionally traumatised by
the whole event and added to her childhood experiences when she was aged three.122

This is a classic case of a witness at risk of secondary victimisation and given the express statutory
requirement that ‘fear’ be widely construed,123 the judge and the Court of Appeal were clearly right to
treat the social worker’s statement as evidence that GB was in fear. It is difficult, however, to see how it
could constitute sufficient evidence to prove fear to the criminal standard. Opinion evidence based on
hearsay evidence from the very witness the defence sought to portray as highly unreliable cannot be
sufficient to prove beyond reasonable doubt the traumatic nature of the incident about which GB would
have had to testify.124 The Court of Appeal in fact made no reference to the standard of proof but simply
held that fear was ‘established’.125 The Court could and should have done better than to fudge the issue
in this way.
One option open to the Court of Appeal would have been to say clearly that what was said in Shabir
about the standard of proof was obiter and should not be followed. The point does not appear to have
been argued in Shabir and the court expressly states that the part of the judgment dealing with the proof
of fear is not among the grounds for its decision.126 Although some commentators assert that there is a
general principle that all preliminary matters which the prosecution seeks to prove must be proved to the
criminal standard,127 this principle is not firmly established in case law. The strongest authority for it is
Lord Hughes JSC’s judgment in Misick v R,128 but not only is the Privy Council’s acceptance of the

119. Criminal Practice Direction 2015 (Amendment no. 5) [2017] EWCA Crim 1076, para. 18E.1.
120. [2012] EWCA Crim 2564, [64].
121. [2015] EWCA Crim 1279; [2015] 2 Cr App R 33.
122. Quoted ibid., [50].
123. CJA 2003s 116(3).
124. Contrast the Court of Appeal’s scepticism about the expert evidence in R v Joseph, above n.78.
125. [2015] EWCA Crim 1279 [71].
126. [2012] EWCA Crim 2564, [68].
127. J. R. Spencer, Hearsay Evidence in Criminal Proceedings, 2nd ed. (Hart: Oxford, 2014) para. 6.40; H. Malek (ed.), Phipson
on Evidence, 18th ed. (Sweet & Maxwell: London, 2013) para. 30–95; I. Dennis, The Law of Evidence, 6th ed. (Sweet &
Maxwell: London, 2017) para. 11–047; R. Pattenden, ‘The Proof Rules of Pre-verdict Judicial Fact-finding in Criminal Trials
with Jury’ (2009) 109 LQR 79, 98–102, accepts the existence of the rule but denies it has any principled basis.
128. [2015] UKPC 31; [2015] 1 WLR 3215.
154 The Journal of Criminal Law 82(2)

principle clearly obiter, but Lord Hughes is at pains to point out that the earlier authorities for it were
either confined to specific situations,129 or were dicta on points that had not apparently been argued.130
Australian, Canadian and New Zealand courts which have considered the general issue of principle have
all concluded that in general the appropriate standard of proof is the civil one,131 although Canada and
New Zealand, unlike Australia, make an exception for the voluntariness of confessions.132
There is much to be said for adopting the civil standard of proof for most preliminary issues, including
that of whether a witness is in fear, but this raises wide issues beyond the scope of this article.133 What
we want to suggest here is that it would be in keeping with a victim-centred due process approach to
admit the hearsay evidence in Ali even on the assumption that fear must be proved to the criminal
standard.
What the court should have done, we suggest, was to hold that even if the evidence was not admissible
through the ‘fear’ gateway, it was admissible in the interests of justice under s. 114(1)(d). The Court of
Appeal has stressed on a number of occasions that s. 114(1)(d) should not be used to circumvent the
requirements of the specific gateways134 and has also urged caution in using the discretion to protect
witnesses on grounds that assume what the prosecution needs to prove.135 If the fear gateway cannot be
passed unless fear is proved to the criminal standard, it would be wrong to hold that a lesser degree of
proof was sufficient in itself to establish that the interests of justice required the hearsay to be admitted.
The issue in Ali was not, however, simply whether the witness was in fear. Rather, the court should have
focused on the risk that the complainant would actually be traumatised by having to relive her experi-
ence. No prejudgment of guilt is involved in finding that there is a risk that the events the witness would
have to describe may have been so traumatic that she would suffer secondary victimisation by having to
relive them. Such a risk may exist whether or not the complainant is in a subjective state of fear. It is
more serious than a mere reluctance to relive distressing past experiences, which has been held insuffi-
cient to justify admission under s 114(1)(d).136 It is incumbent on courts to protect witnesses against
secondary victimisation, while giving them a fair opportunity for their stories to be heard, provided that
this is consistent with the defendant’s right to a fair trial. In a case such as Ali, it is in the interests of
justice to admit the hearsay evidence provided there are sufficient opportunities for the witness to
challenge it.
Similarly, s. 114(1)(d) could be used in the situation where complainants claim that they or their
families have been threatened by the defendants and their associates, but it would be premature to find
this proved to the criminal standard at the admissibility stage. The reason for admitting the evidence in
the interests of justice would not be the witnesses’ subjective state of fear, but the risks that they or their
families would face should it turn out that the defendants really are members of a violent criminal
organisation. As in Doorson, this could be justified on the basis of what is known about the common
methods of this type or organised crime, without any prejudgment of the guilt of the particular
defendants.

129. Ibid., [37], referring to confession evidence (where the criminal standard is now enshrined in the Police and Criminal
Evidence Act 1984, s. 76) and the authenticity of exemplars of handwriting: R v Ewing [1983] QB 1039.
130. For example, R v Minors [1989] 1 WLR 441 (drawing an unwarranted generalisation from the Ewing case above).
131. D. M. Paciocco and L. Stuesser, The Law of Evidence, 5th ed. (Irwin Law: Ontario, 2008) 20–21; R v U(FJ) (1995) 42 CR
(4th) 133 (SCC); for New Zealand see J. D. Heydon, Cross on Evidence, 9th Australian ed. (LexisNexis: New York, 2004)
360 n. 113; Police v Anderson [1972] NZLR 233, 249–50.
132. Paciocco and Steusser, above n. 133; R v McCuin [1982] 1 NZLR 13, 22; A. Ligertwood, Australian Evidence, 4th ed.
(LexisNexis: New York, 2004) 100–1; Wendo v R (1963) 109 CLR 559.
133. These are discussed in a forthcoming article by the first author and Natalie Wortley.
134. R v Z [2009] 1 Cr App R 34; R v C [2010] EWCA Crim 2401, [2010] Crim LR 858; R v CT[2011] EWCA Crim 2341, [2012]
Crim LR 217.
135. R v Burton [2011] EWCA Crim 1990, [16].
136. R v Z, n 136 above.
Ward and Fouladvand 155

Conclusion
We have examined a number of situations where, in theory, the rules of evidence appear to pose serious
problems for the prosecution of human trafficking cases. The qualification ‘in theory’ is important,
because what we have also seen (particularly in Rehman and Ali) is that the Court of Appeal is quite
capable of fudging the issue so as to avoid decisions that would seem harsh from the perspective of the
alleged victim. What we do not know is how often similar fudges are applied at first instance. Nor do we
know how far the ‘law in the books’ influences prosecutorial decisions. This ignorance as to how the
technicalities of evidence law are reflected in practice is a problem not just for the study of human
trafficking prosecutions but for evidence scholarship in general, and it can be remedied only be empirical
research.
In a human rights perspective, criminal trials for serious offences should be seen not simply as crime
control measures—though they do have a part to play within a wider strategy to reduce crime—but as the
forum in which the state seeks to fulfil its duty towards those whose human rights have been violated by
crime, by proving the guilt of an offender in a fair trial in which the victim is afforded a fair opportunity
to participate.137 It is essential to a fair trial that the defendant must be able to adduce evidence that is of
substantial probative value and raise questions that potentially afford grounds for reasonable doubt even
if that evidence or those questions may be distressing to the alleged victim. However, the right of victims
to be protected against secondary victimisation may afford compelling grounds for limiting the defen-
dant’s ‘right to confrontation’ provided there are what the ECtHR calls ‘sufficient counterbalancing
factors’138 to ensure a fair trial. The weaknesses that commonly exist in the evidence of alleged
trafficking victims, such as inconsistent or false previous statements and motives to present themselves
as victims, will very often be ones that can be amply demonstrated to the court without needing to cross-
examine the complainant. The recent report from the CPS Inspectorate highlights the use of the hearsay
provisions, alongside other ways of bringing prosecutions without victim-witnesses, as form of good
practice that needs to be used more effectively.139 There is scope for some flexibility in the courts’
response to such applications.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication
of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.

137. T. Ward and C. Leon, ‘Excluding Evidence (or Staying Proceedings) to Vindicate Rights in Irish and English Law’ (2015) 35
LS 571.
138. Al-Khawaja v UK (2012) 53 EHRR 23, [147].
139. HMICFRS, above n. 10, para. 6.11.